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ELRCAllowedPetition dated 9th September, 2020 (ELC/ELRC Petition, Nyeri)· [2022] KEELRC 190 (KLR)

Geoffrey King’ang’i Muturi v Deputy County Commissioner Mbeere South Sub County & another [2022] KEELRC 190 (KLR)

Employment and Labour Relations Court
23 March 2022
DMD. K. Njagi Marete
2,269 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court nullified chief appointments made without public participation, ordering government to redo recruitment openly.

What this practically means

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Executive summary

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The Petitioner, a Member of Parliament for Mbeere constituency and resident of Mbeere South Sub-County, petitioned the Employment and Labour Relations Court at Nyeri challenging the recruitment of Chiefs II for Mbeti South, Kianjiru and Kithunthiro locations and Assistant Chiefs II (Job Group 'F') for various sub-locations in Mbeere South Sub-County, Embu County. He contended that the 1st Respondent, the Deputy County Commissioner, shortlisted 19 candidates by a public notice dated 31st August 2020 with interviews fixed for 10th September 2020, affording no reasonable period for public verification, vetting and participation regarding the candidates' integrity, competence and suitability as required by Article 10 and Chapter Six of the Constitution. He also cited an earlier opaque recruitment of 36 candidates. He sought declarations that the recruitment comply with Article 10, nullification of the appointments and an order compelling meaningful public participation. The Respondent filed no replying affidavit, only written submissions, contesting jurisdiction, compliance with the Mutunga Rules, and contending no violation occurred. The court found it had jurisdiction under Article 162(2)(a) and Section 12 of the Employment and Labour Relations Court Act, noting the High Court at Embu had transferred the matter; held the Mutunga Rules facilitative and the petition properly before it; and found the recruitment irregular for excluding public participation. The petition was allowed: the court declared the recruitment must comply with Article 10, applied Article 10 to the process, nullified the Assistant Chief II appointments pending public participation, and compelled the 1st Respondent to conduct a meaningful and open public participation process. The judgment is silent on costs.

Key legal issues

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01

Jurisdiction of the ELRC over a constitutional petition concerning recruitment of Chiefs

Holding

The court found it had jurisdiction, the transfer from the High Court at Embu confirming the same.

Reasoning

The Respondent argued the subject matter fell outside Article 162 and 165(5) and Section 12 of the Industrial Court Act. The court held that its jurisdiction is determined by the Constitution and statute, both of which clothe it with jurisdiction over employment matters and matters incidental to employment; recruitment of chiefs is such a matter. The Petitioner relied on Judicial Service Commission v Gladys Boss Shollei where a petition transferred from the High Court to the Industrial Court was held properly transferred.

p. 3
02

Whether the petition met the constitutional threshold under the Mutunga Rules

Holding

The petition met the threshold; the Rules are facilitative, not a bar to access to justice.

Reasoning

The Respondent faulted the Petitioner for non-compliance with Rules 4(1) and 10(1) of the Mutunga Rules, including disclosure and supporting affidavits. The court held the Rules are an enabler meant to simplify the process of approaching court for enforcement of rights, and cannot be used to frustrate and demolish the people's quest for fundamental rights and freedoms.

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Whether the recruitment of Chiefs II and Assistant Chiefs violated the Constitution

Holding

Yes - the opaque recruitment without public participation and stakeholder input violated Article 10 and constitutional principles of public participation.

Reasoning

The Petitioner established that shortlisted candidates were published on 31st August 2020 with interviews set for 10th September 2020, leaving no adequate time for public verification and vetting under Article 10(c) and Chapter 6. Earlier recruitment of 36 candidates was similarly conducted clandestinely. The court found the irregular recruitment of public officers without public involvement unacceptable in a constitutional democracy.

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Legal principles established

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  • The ELRC's jurisdiction is determined by the Constitution and statute, covering all matters employment or incidental to employment
  • The Mutunga Rules are facilitative and cannot be used to defeat the pursuit of fundamental rights
  • Recruitment of public officers without public participation is irregular and unconstitutional

Court orders

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  1. 1.A declaration that the recruitment process for the position of Chief II for Mbeti South, Kianjiru and Kithunthiri and posts for the Assistant Chiefs II Job Group 'F' be done in compliance with Article 10 of the Constitution
  2. 2.An order that Article 10 of the Constitution of Kenya, 2010 on the national values and principles of governance be applied in the recruitment process
  3. 3.An order nullifying the appointment, recruitment and/or otherwise for the post of Assistant Chief II Job Group 'F' Gichiche sub location, Gachuriri sub location and Wachoro sub location until the public has fully participated
  4. 4.An order compelling the 1st Respondent to conduct a meaningful and open public participation process by allowing the Petitioner, residents, members of the public and stakeholders to present views or written memoranda on the integrity, suitability and competence of the shortlisted candidates

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10(2)(a) and (c)
  • Constitution of Kenya, 2010Article 73(1) and (2)
  • Constitution of Kenya, 2010Chapter Six
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 165(5)
  • Employment and Labour Relations Court ActSection 12
  • Industrial Act (Industrial Court Act), 2011Section 12
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4(1) and 10(1)

Cases cited (1)

  • Judicial Service Commission vs Gladys Boss Shollei & Another (2014) eKLR
    (2014) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Geoffrey King’ang’i Muturi v Deputy County Commissioner Mbeere South Sub County & another [2022] KEELRC 190 (KLR)", Case Analysis (2022). Petition dated 9th September, 2020 (ELC/ELRC Petition, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/190/eng@2022-03-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.